Appeals court hears arguments in case of John W. Cole

1of4Regina Cole and her husband, John Cole, listen to arguments at the New York State Supreme Court, Appellate Division, Third Judicial Department on Tuesday, Oct. 15, 2019, in Albany, N.Y. John Cole's attorney was making an appeal argument on behalf of Cole who was convicted and sentenced to 7 years in prison for an alcohol-impaired crash in Halfmoon that injured Deanna Shapiro, a passenger in his car. (Paul Buckowski/Times Union)Paul Buckowski/Albany Times Union2of4Scott Shapiro and his wife Deanna Shapiro listen to arguments at the New York State Supreme Court, Appellate Division, Third Judicial Department on Tuesday, Oct. 15, 2019, in Albany, N.Y. An attorney was making an appeal argument on behalf of John Cole who was convicted and sentenced to 7 years in prison for an alcohol-impaired crash in Halfmoon that caused Deanna's injuries. (Paul Buckowski/Times Union)Paul Buckowski/Albany Times Union3of4Paul Shechtman, attorney for John Cole,
speaks at the New York State Supreme Court, Appellate Division, Third Judicial Department on Tuesday, Oct. 15, 2019, in Albany, N.Y. Shechtman was making an appeal argument on behalf of Cole who was convicted and sentenced to 7 years in prison for an alcohol-impaired crash in Halfmoon that injured Deanna Shapiro, a passenger in his car. Also pictured is Saratoga County Assistant District Attorney Gordon Eddy, foreground. (Paul Buckowski/Times Union)Paul Buckowski/Albany Times Union4of4Scott Shapiro and his wife Deanna Shapiro listen to arguments at the New York State Supreme Court, Appellate Division, Third Judicial Department on Tuesday, Oct. 15, 2019, in Albany, N.Y. An attorney was making an appeal argument on behalf of John Cole who was convicted and sentenced to 7 years in prison for an alcohol-impaired crash in Halfmoon that caused Deanna's injuries. (Paul Buckowski/Times Union)Paul Buckowski/Albany Times Union

ALBANY — A lawyer for auto repair chain businessman John W. Cole told an appellate court Tuesday his client appeared "fine" and "normal" and was not driving recklessly before a 2017 crash in Halfmoon that left a backseat passenger a quadriplegic.

“This is not a case in which someone is getting in a vehicle and saying to himself ‘I shouldn’t be driving,’" Paul Shechtman, a prominent Manhattan defense attorney, told four justices at the Appellate Division of state Supreme Court in Albany. "Because everybody — including the passengers — said there was no reason that he shouldn’t be driving. And he drove."

Cole, 54, of Clifton Park, who owns the Cole's Collision chain in the region, was convicted last year of second-degree assault, a felony, as well as alcohol-impaired driving. Saratoga County Judge James A. Murphy III sentenced Cole to seven years in prison for the March 11, 2017, crash. Cole has remained free on $50,000 bail pending his appeal.

Cole and his wife, Regina, watched the arguments across the room from Deanna "Dee" Shapiro and her husband, Scott, all former good friends who had gone out on the night of the crash for music and drinks. Cole crashed his 2015 twin-turbocharged BMW coupe just after midnight into a tree on Sitterly Road, leaving Deanna Shapiro, a mother of two children, a quadriplegic.

Shecthman acknowledged Cole was speeding moments before the crash. But speeding alone, the lawyer said, is not grounds to support a conviction for reckless assault. He argued that prosecutors failed to prove Cole was aware of a substantial and unjustifiable risk and disregarded it.

Every person who left the bar with Cole on the night of the crash had said Cole appeared “fine” and “normal,” Shechtman said.

“I think if this was just a speeding case this would be a civil case,” Shechtman told the judges.

“But it’s more than a speeding case,” Lynch cut in. “There are other factors that we need to consider.”

Saratoga County Assistant District Attorney Gordon Eddy told the judges Cole was driving 78 mph in a 40 mph zone on a curvy road, struck a sign post and a fire hydrant and yet kept driving — and never used his brakes.

“A reasonable person takes their foot off the accelerator,” Eddy said. He referred to Cole's car as a "fancy BMW" with a tone of mockery.

He said Cole's alcohol use in addition to speeding proved recklessness.

According to Shechtman, Cole told a police officer he had four-to-five beers within the space of five hours. Lynch reminded Shechtman that there was testimony Cole had been drinking vodka.

Shechtman also argued Murphy wrongly allowed prosecutors to be able to cross-examine Cole — if he testified — about a criminal record that is 27 years old. Cole has eight prior convictions, including five felonies, but none are more recent than 1991. Murphy would have let prosecutors ask Cole about an unspecified 1991 felony conviction — but not any of the specifics. The judge's ruling kept Cole from testifying, Shechtman argued.

Shechtman said Cole, in the years since his prior convictions, has led "the most law-abiding life one can imagine."

Clark asked Eddy if he would agree that a 27-year-old conviction was far in the past. Eddy said he "can't hide" from the fact that the age of the convictions reduced their probative value, but said Murphy did nothing wrong by allowing prosecutors to ask Cole about a felony conviction in 1991.

Devine said the decision would have left it to the jury to guess what the conviction involved.

It was Devine who allowed Cole to remain free on bail pending the appeal. On Tuesday, the judge asked Shechtman about an argument he heard before he allowed Cole bail: That Murphy twice told Cole's trial lawyer, Cheryl Coleman, to stop talking about "reasonable doubt" in her closing argument.

In a surprise, Shechtman said he did not question Murphy. He told Devine he had never seen a lawyer argue reasonable doubt as much as Coleman did in her summation.

"My own sense is it was not unreasonable for a trial judge to say, 'Enough,'" Shechtman said.